Citation Nr: 9904174
Decision Date: 02/16/99 Archive Date: 02/24/99
DOCKET NO. 97-32 259 ) DATE
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On appeal from the
U.S. Department of Veterans Affairs (VA) Regional Office (RO)
in Boston, Massachusetts
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for service connection for chronic obstructive
pulmonary disease (COPD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. Henriquez, Associate Counsel
INTRODUCTION
The veteran had active military service from October 1951 to
November 1960. By rating actions of May 1993 and July 1993,
the RO denied service connection for COPD. The veteran was
notified of these denials and of his appellate rights by
letters of May 1993 and July 1993, but he did not file a
timely notice of disagreement with either decision. This
appeal arises from a January 1997 rating action which denied
service connection for COPD on the grounds that new and
material evidence had not been submitted to reopen the claim.
REMAND
At the time of above noted 1993 rating actions, there were
diagnoses of COPD and tobacco abuse. The veteran had
attributed COPD to exposure to various gases in service
associated with duties of training new recruits in gas
chambers. He has attempted to reopen his claim for service
connection for COPD based on different theories of
entitlement. First, he has submitted copies of newspaper
articles concerning asbestos being found in the drinking
water at Westover Air Force Base in Massachusetts in 1996 and
contended that he was exposed to asbestos at that base and at
Mather Air Force Base in California. He lists asbestos
exposure in service as one cause of COPD. His second theory
of entitlement is that his COPD is due to cigarette smoking
which began in service. In view of the fact that his attempt
to reopen his claim for service connection for COPD occurred
prior to June 1998, an opinion of the General Counsel of the
VA in May 1997 is applicable here. See VAOPGCPREC 19-97,
(May 13, 1997). The veteran's third theory of entitlement is
that he was exposed to chemical fumes in service and that
these exposures caused COPD. In this regard, he lists duties
involving a gas chamber at Sampson Air Force Base in 1951,
exposure to zinc chromate at Shepard Air Force Base in 1952
and exposure to carbon tetrachloride in North Africa in 1956.
It is appropriate that further development be undertaken
concerning these various bases of entitlement referred to by
the veteran.
38 C.F.R. § 3.156(a) provides, in pertinent part, that in
order to reopen a claim for
service connection, there must be added to the record new and
material evidence which bears directly and substantially upon
the specific matter under consideration, which is neither
cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. The United States Court of
Veterans Appeals (Court) has held that, once a denial of
service connection has become final, the claim cannot
subsequently be reopened unless new and material evidence has
been presented. The Board of Veterans' Appeals (Board) must
perform a two-step
analysis when the veteran seeks to reopen a claim based on
new evidence. First, the Board must determine whether the
evidence is "new and material." Second, if the Board
determines that the claimant has produced new and material
evidence, the claim is reopened and the Board must evaluate
the merits of the veteran's claim in light of all the
evidence, both old and new. Manio v. Derwinski, 1 Vet. App.
140, 145 (1991).
The Board notes that, until recently, the caselaw of the
Court mandated that the third question to be resolved in the
first step of the Manio analysis was whether, in light of all
the evidence of record, there was a "reasonable possibility
that the new evidence, when viewed in the context of all the
evidence, both new and old, would change the outcome" in the
prior determination. Colvin v. Derwinski, 1 Vet. App. 171,
174 (1991); see Evans v. Brown, 9 Vet. App. 273, 283 (1996).
However, the United States Court of Appeals for the Federal
Circuit has recently held that this judicially created
standard is inconsistent with the language of section
3.156(a) of VA regulations, cited above, and has overruled
the extension of the Manio analysis that was first
articulated by the Court in Colvin, supra. See Hodge v.
West, 155 F.
3d. 1356 (1998). Inasmuch as the January 1997 rating action
and the September 1997 Statement of the Case (SOC) were
based, in part, on the standard which was struck down in
Hodge, supra, a remand is warranted to allow the RO to apply
the standards set forth therein. The Board notes that the
January 1997 rating action and the September 1997 SOC applied
the correct standard of review at the time they were issued,
because the Hodge case was not decided by the United States
Court of Appeals for the Federal Circuit until September 16,
1998. However, this fact does not change the requirement
that this case be considered in accordance with the Hodge
decision.
The case is REMANDED to the RO for the following action:
1. The RO should contact the veteran and
ask him to furnish complete information
concerning the dates he was stationed at
Westover Air Force Base, Mather Air Force
Base, Sampson Air Force Base, Shepard Air
Force Base, and in North Africa, his
duties at those bases and the
circumstances of his exposure to the
substances described above when stationed
at those bases. He should also be
furnished a smoking questionnaire by the
RO that is designed for processing of the
claim for service connection for COPD
pursuant to the above noted General
Counsel opinion. The veteran should also
be given an opportunity to submit any
medical evidence he has to support his
contention that his COPD is due to
asbestos exposure in service, cigarette
smoking (nicotine dependence) which began
in service, or any of the other substance
exposures he reported having in service.
2. The RO should obtain the veteran's
complete service personnel records for
association with the claims folder.
3. Thereafter, the RO should review the
record and readjudicate the issue of
whether new and material evidence has
been submitted to reopen a claim for
service connection for COPD. If any
additional development is in order based
on information received in response to
instructions #1 and #2, above, the RO
should undertake such development. The
RO is directed to make a decision on the
issue on appeal based only on
consideration of the holding in Hodge,
supra, and on 38 C.F.R. § 3.156.
If the determination remains adverse to the veteran, both he
and his representative should be provided with a
Supplemental Statement of the Case. They should be given the
opportunity to respond within the applicable time.
Thereafter, the case should be returned to the Board, if in
order. The appellant need take no action until otherwise
notified. The purpose of this remand is to comply with a
precedent decision of the Court and to procure clarifying
data.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
BRUCE E. HYMAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (1998).
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